Citation Nr: 0530675
Decision Date: 11/15/05 Archive Date: 11/30/05
DOCKET NO. 03-17 949 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for arteriosclerotic
heart disease.
2. Entitlement to service connection for hypertensive
vascular disease.
3. Entitlement to service connection for gastric ulcer.
4. Entitlement to service connection for major depressive
disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Eckart, Counsel
INTRODUCTION
The veteran served on active duty from April 1958 to June
1962.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision of January 2003 from the Regional
Office (RO) of the Department of Veterans Affairs (VA), in
Nashville, Tennessee, which denied the issues on appeal.
This matter was remanded in June 2004 for due process
purposes. Such has been accomplished and the case is now
returned to the Board for further consideration.
FINDINGS OF FACT
1. The VA has fulfilled its notice and duty to assist to the
appellant by obtaining and fully developing all relevant
evidence necessary for the equitable disposition of the
issues addressed in this decision.
2. The veteran's arteriosclerotic heart disease is not shown
to be related to service or an incident of service origin.
3. The veteran's hypertensive vascular disease is not shown
to be related to service or an incident of service origin.
4. The veteran's peptic ulcer disease is not shown to be
related to service or an incident of service origin.
5. The veteran's major depressive disorder is not shown to
be related to service or an incident of service origin.
CONCLUSIONS OF LAW
1. Arteriosclerotic heart disease was not incurred in or
aggravated by service, nor may it be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103,
5103A, 5107 (West 2002 & Supp. 2005), 38 C.F.R. §§ 3.102,
3.303, 3.307, 3.309 (2005).
2. Hypertensive vascular disease was not incurred in or
aggravated by service, nor may it be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103,
5103A, 5107 (West 2002 & Supp. 2005), 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309 (2005).
3. Peptic ulcer disease was not incurred in or aggravated by
service, nor may it be presumed to have been so incurred. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West
2002 & Supp. 2005), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309
(2005).
4. Major depressive disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103,
5103A, 5107 (West 2002 & Supp. 2005), 38 C.F.R. §§ 3.102,
3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable Agency of Original
Jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In this case, for the reasons set forth below, the VA has
complied with the VCAA, as well as the implementing
regulations, in reference to the issue addressed in this
decision.
The veteran has been informed of the evidence needed to show
his entitlement to service connection via a RO duty to assist
letter issued in April 2002, the January 2003 rating
decision, and the June 2003 statement of the case (SOC). In
addition, the RO sent the veteran another duty to assist
letter issued in July 2004, and this along with the April
2002 letter and the June 2003 SOC also provided the veteran
with specific information concerning the VCAA and
specifically notified the veteran that VA would obtain all
relevant evidence in the custody of a federal department or
agency. He was advised that it was his responsibility to
either send medical treatment records from his private
physician regarding treatment, or to provide a properly
executed release so that VA could request the records for
him. The veteran was also asked to advise VA if there were
any other information or evidence he considered relevant to
this claim so that VA could help by getting that evidence.
Thus, no further notices are required. See Quartuccio,
supra.
Secondly, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the case. 38 U.S.C.A. §
5103A (West 2002 & Supp. 2005); 38 C.F.R.
§ 3.159(c). In this case, all identified and available
evidence has been obtained, including all relevant treatment
records and examination reports. Thus, the Board finds that
no additional evidence, which may aid the veteran's claim or
might be pertinent to the bases of the claim, has been
submitted, identified or remains outstanding, and the duty to
assist requirement has been satisfied. See Quartuccio,
supra.
II. Service Connection
Service-connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§
3.303, 3.304 (2005). In addition, service-connection may be
granted for any disease diagnosed after discharge, when all
of the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R.
§ 3.303(d) (2005). In order to establish service connection,
a claimant must generally submit (1) medical evidence of a
current disability, (2) medical evidence, or in certain
circumstances lay testimony, of service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus or relationship between the current disability and
the in-service disease or injury. Pond v. West, 12 Vet. App.
341, 346 (1999).
For veterans who had service of ninety (90) days or more
during a war period or peacetime service after December 31,
1946, and any chronic disease such as ulcers (gastric or
duodenal) cardiovascular disorder including hypertension and
any psychosis is manifest to a compensable degree within a
year thereafter, there is a rebuttable presumption of service
origin, absent affirmative evidence to the contrary, even if
there is no evidence thereof during service. 38 U.S.C.A. §§
1101, 1112, 1113 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2005).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107
(West 2002). A veteran is entitled to the benefit of the
doubt when there is an approximate balance of positive and
negative evidence. See also, 38 C.F.R. § 3.102. When a
veteran seeks benefits and the evidence is in relative
equipoise, the veteran prevails. See Gilbert v. Derwinski, 1
Vet. App. 49 (1990). The preponderance of the evidence must
be against the claim for benefits to be denied. See Alemany
v. Brown, 9 Vet. App. 518 (1996).
The veteran contends that he is entitled to service
connection for arteriosclerotic heart disease, hypertensive
vascular disease, major depression and an ulcer.
The medical evidence shows that the veteran's April 1958
entrance examination revealed normal heart and vascular
findings, normal psychiatric findings and normal examination
of the abdomen and viscera. His blood pressure was 130/70
sitting. His sitting pulse was 72. In the accompanying
report of medical history, he denied any history of stomach
trouble, high blood pressure, pain or pressure in his chest,
shortness of breath, frequent indigestion, depression,
excessive worry, nightmares, nervous trouble of any sort and
excessive drinking. A March 1959 periodic examination
revealed normal heart and vascular findings, normal
psychiatric findings and normal examination of the abdomen
and viscera. His blood pressure was 108/64 sitting, 110/70
standing. His sitting pulse was 72 and his pulse immediately
after exercise was 104 and two minutes after exercise was 80.
His June 1962 separation examination revealed normal heart
and vascular findings, normal psychiatric findings and normal
examination of the abdomen and viscera, except for a
hemorrhoid. His blood pressure was 134/90 sitting, 134/88
standing. His sitting pulse was 80 and his pulse immediately
after exercise was 96 and two minutes after exercise was 88.
The service medical records revealed no evidence of treatment
for heart complaints or high blood pressure, stomach
complaints or psychiatric complaints.
VA treatment records from 1988 reveal that the veteran was
admitted to the hospital for alcohol dependence from February
to March 1988. The February 1988 admission record gave a
history of two prior admissions for alcohol dependence in
1973 and 1984. He had been sober since 1984 until five and a
half months ago, when he resumed drinking. He also had a
background of gastrointestinal (GI) bleeding. Physical
examination showed 1+ for blood in the stools. Laboratory
tests and drug screen were negative. He was oriented in all
spheres and denied suicidal or homicidal thoughts. No
psychotic symptom was observed on admission.
A February 1988 social work record during his treatment
described the veteran's five and a half month drinking binge
resulting in blackouts and he began feeling depressed. He
decided to admit himself for treatment after a 10 day binge
led to hospitalization. His history included his time in the
service from 1958 to 1962 in which he reported problems
drinking, but no consequences. He described himself as
having been a loner the majority of his life, which he
related to his feelings regarding his childhood. Regarding
drinking, he indicated that he started drinking at age 15,
and that during the service, his consumption increased daily.
He described his drinking as binge type drinking for 2 to 3
days at a time, with the longest period as 10 days. He
reported blackouts and depressed feelings when drinking. His
medical history was noted to include nose surgery in 1972 and
treatment for alcohol related problems in 1979, 1984 and
1988. He indicated that he underwent electroconvulsive
therapy (ECT) in 1979, for depression. He was noted to show
no signs of a thought disorder and appeared very relaxed and
calm during the Social Work interview. He also demonstrated
adequate reality contact, coherence, orientation, attention
span, memory and communication skills. He denied current
suicidal ideations but admitted to two past attempts.
Other records from the February to March 1988 treatment
reveal that he also had GI symptoms of hematemesis and
hematochezia. He reported two previous suicide attempts in
the early 1970's. An X-ray of the chest revealed slight
hyperinflation of the lungs, otherwise unremarkable chest,
with heart and vascular markings shown to be normal. A
February 1988 psychological assessment revealed that the
veteran was drinking to manage unpleasant emotions, although
no specific diagnosis was given. A February 1988 physical
examination revealed pertinent findings of the heart having
regular rate and rhythm without carotid bruits and peripheral
pulses intact and evidence of occult blood on
gastrointestinal. The impression was ETOH abuse and GI
bleed. Records in March 1988 revealed that the veteran
denied any severe depression problems but voiced problems
dealing with stress and tension from everyday life. He was
described as having excessive use of alcohol related to
ineffective coping skills. On discharge from the program in
March 1988, he denied suicidal or homicidal thoughts.
VA records from February 1995 in conjunction with cataract
surgery reflect a diagnosis of hypertension. In March 1996
he was hospitalized for shortness of breath, and among other
findings, was noted to have elevated blood pressure of
140/110. X rays of the chest in March 1996 showed findings
of general interstitial thickening with mild hyperexpansion
of lungs. It was noted that the findings could represent
chronic obstructive pulmonary disease (COPD) and chronic
fibrotic change. Superimposed mild changes of congestive
heart failure (CHF) or interstitial pneumonitis was not
excluded. Among the diagnoses in March 1996 were COPD
exacerbation, CHF and hypertension.
In December 1996 he was hospitalized with a six week history
of left sided chest pain and findings of abnormal
electrocardiogram (ECG). He underwent heart catheterization,
following which the discharge diagnoses in December 1996
included three vessel coronary artery disease with abnormal
left ventricular function with moderate reduction in left
ventricular systolic function; left internal carotid artery
critical stenosis; hypertension, COPD and history of
congestive heart failure exacerbation. In January 1997, the
veteran underwent coronary artery bypass surgery. A January
1997 consult to psychology from cardiology revealed the
veteran to voice no complaints and objectively showed no
mental status difficulties. He denied any psychiatric
history. He underwent additional cardiovascular surgery in
March 1997, consisting of left carotid enterectomy. The
March 1997 surgical report noted a past medical history that
included 1. Myocardial infarction, March 1996 2. Peptic
ulcer disease 3. hypertension. A December 1997 ECG report
yielded findings of abnormal ECG.
In April 1998, the veteran was seen for complaints of
"bloating." An ECG showed no significant changes from
December 1997. Examination of the abdomen revealed no
significant findings, with no tenderness. The diagnostic
impression was colon gas. An April 1998 VA X ray of the
abdomen showed no acute abnormality of the abdomen.
VA treatment records from 1999 through 2004 reflect continued
treatment for chronic cardiovascular problems, including
hypertension, vascular and heart problems. The records also
make occasional references to an ulcer condition and anxiety.
A December 1999 VA cardiac treatment record reflects that the
veteran gave a history of cardiovascular irregularities since
his thirties and was noticing an increase of palpitations the
past eight months since being placed on Prednisone for back
problems and antibiotics for an ulcer. Complaints of severe
elevations in blood pressure were also reported in December
1999.
A November 2000 record showed complaints of bright red blood
mixed with bowel movement with a history of an ulcer. He was
assessed with a hemorrhoid.
In December 2000, he underwent a series of examinations to
determine the cause of left arm and face numbness and was
noted to have a history of past cardiac surgeries and
cerebrovascular accident (CVA). The December 2000 records
revealed ongoing hypertension, as well as findings of
intermittent bradycardia and assessed the episodes of
numbness as likely transient ischemic attacks (TIA). In
January 2001 he was hospitalized for CVA and TIA. Among the
diagnoses noted in January 2001 were transitory cerebral
ischemia, CVA, carotid artery disease, coronary artery
disease, and hypertension. He continued to be treated for
problems related to CVA and TIA as shown in records
throughout the remainder of 2001.
Records from 2002 reflect continued treatment for
cardiovascular problems as noted above. In April 2002 he was
treated for complaints of unstable angina and testing
revealed him as having significant athero-occlusive coronary
disease with tests showing infarct of the anterior contiguous
wall, apex, inferior wall of variable severity. Among the
medical history noted in April 2002 included anxiety state,
cerebral ischemia, CVA, carotid artery disease, coronary
artery disease, and hypertension. These diagnoses were
reported again in a June 2002 record, which noted the anxiety
state to be stable.
Treatment for psychiatric complaints are revealed in records
beginning October 2002 which note that the veteran requested
a referral to mental health services for complaints of
depression, with problems sleeping, nightmares and intrusive
thoughts of death and suicide. He also gave a history of
significant depression in his 30's requiring shock treatment.
A December 2002 mental health consult gave a history of
depression, CAD, TIA, with the veteran complaining of feeling
depressed off and on since the coronary artery bypass graft
(CABG) in 1997. He had a past psychiatric history
significant for major depressive disorder (MDD) treated with
shock treatments when he was 30 years old. He admitted to
heavy drinking at the time. He gave a history indicative of
a normal upbringing as a child, with no apparent problems.
He gave a history of having been court martialed for public
intoxication and unruly behavior while in the service.
Following examination, he was diagnosed with MDD, recurrent,
dysthymia rule out depression due to general medical
condition (GMC), rule out sub induced mood disorder. This
diagnosis was confirmed in January 2003.
VA records from 2003 to 2004 reflect continued treatment for
serious health problems including cardiovascular problems as
well as depression. A problem list after he was treated for
a rib injury in July 2003 included postsurgical aortocoronary
bypass status, old myocardial infarction, gastroesophageal
reflux disorder, major depression, dysthymic disorder,
essential hypertension, anxiety state, TIA, CVA , carotid
artery disease and coronary artery disease. In November 2003
the veteran contacted a social worker, requesting a letter
from the VA regarding his various medical problems described
as CAD, hypertension, ulcers and a hernia and how they
affected his ability to work. In January 2004 a note was
drafted in conjunction with his request stating that the
veteran was being treated for the following conditions:
hypertension, CAD, hyperlipidemia, headaches, major
depression with anxiety, s/p TIA/CVA hiatal hernia. He
received medical care for these conditions and required
multiple medical appointments to monitor and treat his
medical problems. He was viewed as unemployable and his
conditions were chronic and lifelong. No opinion on service
connection was given in this note.
The veteran was seen by the VA in April 2004 for complaints
of chest pain, assessed as angina and following examination,
the diagnoses included CAD s/p CABG, CVA, carotid artery
disease, s/p L CEA, hyperlipidemia, hypertension, and
depression. Another April 2004 record reflects complaints of
rectal bleeding with a history of ulcer disease for which he
had received prior treatment, although it was not noted to be
mentioned in the record.
After consideration of all of the medical evidence, the Board
finds that the evidence does not support a finding that the
veteran's claimed arteriosclerotic heart disease,
hypertensive vascular disease, peptic ulcer disease and major
depressive disorder are the result of his service.
None of the post-service medical records obtained reflect
that any of the claimed disabilities began in service or were
caused by service. Regarding the veteran's claims for
cardiovascular disorders, including hypertension and
arteriosclerotic heart disease and ulcer disease, there is
likewise no evidence reflecting that any of these disorders
were manifested to a compensable degree within one year of
his discharge from service in June 1962. The medical
evidence does not show documentation of hypertension until
1995, when elevated blood pressure was noted in records from
cataract surgery, and the other cardiovascular problems are
not shown to be manifested until 1996. A problem with
gastrointestinal bleeding is not shown until 1988 when he was
treated for alcohol related problems and he was not
specifically treated for an ulcer condition until 1999.
Regarding psychiatric problems, the evidence likewise fails
to show a psychiatric disorder began in service, or that the
veteran suffered from a psychosis that began within one year
of his discharge from service in 1962. The evidence reflects
that he was treated for alcohol problems in 1988 and gave a
history of psychiatric treatment following suicide attempts
in the 1970's.
None of the records concerning treatment for the veteran's
cardiovascular problems, including hypertension, and none of
the records addressing gastrointestinal problems or any
psychiatric condition, contain any opinion linking any such
disorder found to service.
Where, as here, the claims turn on a medical matter, the
veteran cannot establish entitlement to service connection on
the basis of his assertions, alone. As a lay person, without
appropriate medical training and expertise, the veteran
simply is not competent to offer a probative opinion on a
medical matter, such as whether his claimed disabilities are
the result of his active service. Espiritu v. Derwinski, 2
Vet. App. 492 (1992).
The Board finds that absent medical evidence supporting the
argued causal nexus between the veteran's arteriosclerotic
heart disease, hypertensive vascular disease, peptic ulcer
disease and major depressive disorder and active service or,
in the alternative, medical evidence establishing
manifestation of his cardiovascular conditions, ulcer
condition and psychiatric condition within the one-year
presumptive period following discharge from active duty, the
Board is not able to find that the veteran's arteriosclerotic
heart disease, hypertensive vascular disease, peptic ulcer
disease and major depressive disorder are the result of his
active service.
After review of the record, and for the reasons and bases
expressed above, the Board concludes that the preponderance
of the evidence is against the veteran's claims for
entitlement to service connection for arteriosclerotic heart
disease, hypertensive vascular disease, peptic ulcer disease
and major depressive disorder and active service as the
direct result of his active service or as manifested within
the one-year presumptive period following his discharge from
active service. The benefits sought on appeal are
accordingly denied.
ORDER
Service connection for arteriosclerotic heart disease is
denied.
Service connection for hypertensive vascular disease is
denied.
Service connection for peptic ulcer disease is denied.
Service connection for major depressive disorder is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs